Court mulls if government can force you to decrypt your password

[Freddie Stubbs]

Source: TechEye.net

A woman accused of a mortgage scam is proving a test case to see if it is unconstitutional for the US government to punish its citizens for refusing to disclose their encryption codes.

According to CNET, the government has a federal judge to order the defendant, Ramona Fricosu, to decrypt an encrypted laptop after she refused.

It has yet to be decided if such a demand breaks the US Constitution's Fifth Amendment, which allows Americans to shut up if they are charged.

Fricosu's brief, Philip Dubois, said defendants can't be constitutionally obligated to help the government interpret their files.


Read more: http://www.techeye.net/security/court-mulls-if-government-can-force-you-to-decrypt-your-password

[Ian David]

1. "Sorry, I FORGOT the password. Oops." n/t

[greiner3]

2. A similar excuse;

Has been used, successfully, by many, many Republicans.

[Recursion]

3. Many whole-disk encryption schemes offer a "plausible deniability" fake drive

"Oh, you want me to decrypt my laptop? No problem. See? It's all videos of cats playing with dolphins!"

[eggplant]

8. Silence and lying are not the same thing. n/t

[quakerboy]

41. Is Omission of a detail lying?

"You wont find anything, but here is my password"

Does that statement include any specific information to indicate that there is not another password for other data.

[No Elephants]

46. In court proceedings, whether something is perjury matters more than whether something

is a lie. And so does whether the prosecutor will pursue a perjury.

I don't think anyone, witness or alleged perp, is require to volunteer information for which a questioner has not specifically asked.

[valerief]

6. The Alberto Gonzales standard response, "I can't recall." nt

[jtrockville]

4. "I DO NOT RECALL".... hey - it worked for Alberto Gonzales

[NorthCarolina]

5. Waterboard her....she'll remember

:sarcasm:

[valerief]

7. Bwahahahaha! Wait. I'll bet that's next since it's no longer a crime.

If it were, Bush would have been arrested, so it can't be illegal.

[Downwinder]

9. Can you make a serial murderer tell you where all of the bodies are?

[dickthegrouch]

10. In the best Catch-22 tradition

Encryption of the drive is essentially spoliation of the evidence.
Decrypt and get charged with the crime; leave encrypted and be charged with obstruction or contempt of court.
Gotta love Catch-22.

[No Elephants]

11. The encryption did not take place when the computer was evidence.

[No Elephants]

12. A court worrying about the Constitution? How quaint, how quaint, how very quaint.

[cstanleytech]

13. Tricky case

On one hand a warrant legally compels a person to allow the police to conduct search but on the other hand the 5th amendment doesnt allow the police to force a person to incriminate themselves which providing the password might well do.

[RaleighNCDUer]

14. I don't see what's so tricky about it -

a search warrant allows the police to search your premises. It doesn't force you to show them where your stash is. They have to find it on their own.

By the same token, a search warrant allows them to search your computer. It doesn't force you to decrypt it for them them. They have to break the encryption on their own.

If they find the password scribbled on the flyleaf of the romance novel next to the computer - good on them.

[cstanleytech]

Ah but a warrant requires you to say unlock a door to allow them to conduct

the search of a house and if you refuse they can break said door down with the difference here being said door is the password that you installed on the computer so like I said imo its a tricky case to decide.

[NYC Liberal]

26. Right, so just as they are allowed to break down the door

they can break into the computer. Getting past encryption might be more difficult than breaking down a door, but the idea is the same.

What happens if someone legitimately forgets or loses their password? (Many people have long, randomized passwords that they either memorize or write down in a safe place.)

[Hassin Bin Sober]

28. My question is:

Has anyone ever been charged with "obstruction" if they refused to open the door?

It is a bit of a gray area. I fully expect the Supreme Court to side with the police.

[ManiacJoe]

52. Wrong analogy.

The password would be the same as the key to the door, not the door itself.

[cstanleytech]

16. double post nt

[mwooldri]

15. That 5th amendment. Hmmm...

Let's put the situation into analog terms.

We have a locked box that contains evidence about an alleged crime, and the defendant knows where the key is to unlock the box but will not tell authorities where it is. Authorities have tried but failed to open the box.

What is the defendant guilty of if that individual states that they plead the 5th?

Similar thing in the digital world: A locked hard drive, the defendant knows the key and is not giving it to authorities. It's just that it is an encryption key on a hard drive.

Since this is the USA, the government can go pick the lock itself. This is not the UK where you can get jailed for 2 years for failing to give up the encryption key when requested to do so by police.

[cstanleytech]

18. Problem

with that is with encryption is if its good enough the police stand almost no reasonable chance to break it and search as they were authorized by the court to conduct unlike say a safe which might take few minutes to a few hours at most.

[Javaman]

19. that's the authorities problem.

5th amendment rights still hold up.

Are they supposed to force the person to cough up the key because the person is smarter than they are?

[cstanleytech]

22. "5th amendment rights still hold up." you are correct for now atleast

but it might not be so after the court makes its ruling.

[Javaman]

36. well, you have me there.

given everything else they've taken away, it's just a matter of time.

[cstanleytech]

38. Well there is another option they could have gone which is

pass a law making it a felony with 20 years to life without parole for not providing the password to computer you own and or files on a computer you own or possess, then this case would be moot almost.

[Javaman]

44. Give it time. nt

[No Elephants]

47. How does a statute get around the Fifth Amendment issue? It all rides on the court ruling.

[ProgressiveProfessor]

17. This is a very subtle case and one worth watching closely

The government's position is that the encryption code is like a key to a file cabinet. You have to give those up. The contrary position is that giving up the pass phrase is testifying against yourself and everything gained from that is fruit of the poisoned tree. EFF has a good discussion of this, and it is far from a slam dunk.

For those advocating the "I forgot" approach, I would remind you that contempt of court can go on for as long as the judge likes.

[BeFree]

20. Right, ---encryption is speech

My feeling is that if the government can't make it's case that you are not innocent without violating your right to free speech, they don't have a case.

[cstanleytech]

23. I thought the case was about the 5th amendment not the 1st?

[BeFree]

24. Both

The 5th is after the 1st.

Free speech is the basis for everything else. The government can't make you speak about anything.

[Hassin Bin Sober]

29. The government most certainly CAN make you speak (about some things).

Or as my father used to say, make you sorry you didn't.

[ProgressiveProfessor]

33. They can try...

There was a case a while back about a mother who hid her children during a divorce and refused to divulge their location. She was in jail for contempt for a very long time. If the court finds for the Obama administration on this...

[AndyTiedye]

21. They Can't Imprison You for Not Giving Up the Key to Something

They can drill out the lock, but they can't imprison you for refusing to give them the key.

[Hassin Bin Sober]

30. I doubt if it is that cut and dried.

I would be curious if there is any case law regarding un-locking doors for police producing search warrants. Sure the cops can break a door down but can they charge you with obstruction if you fail to open the door?

I quick google shows Florida has a law on the books:

933.15 Obstruction of service or execution of search warrant; penalty.—Whoever shall knowingly and willfully obstruct, resist, or oppose any officer or person aiding such officer, in serving or attempting to serve or execute any search warrant, or shall assault, beat or wound any person or officer, or his or her deputies or assistants, knowing him or her to be such an officer or person so authorized, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 15, ch. 9321, 1923; CGL 7534; s. 1160, ch. 71-136; s. 1574, ch. 97-102.

I tend to agree with you but I could see our Supreme Court going the other way.

[ProgressiveProfessor]

32. It the only way in is for you to provide the key...

that at least is the logic of the Obama administration

[Nye Bevan]

27. What if you *really* did forget? (nt)

[ProgressiveProfessor]

31. You had better be able to convince the judge of that

If you were using it on a daily basis, I doubt you would be believed. If you last used it 3 years ago, that would be a different matter.

[Devil_Fish]

34. In stead of "I forgot"..... "I am exerting my 5th amendment right to remain silent."NT

[ProgressiveProfessor]

37. That is the exact issue before the court at this time...and I do not like what the Obama

administration is pushing.

[Kelvin Mace]

25. Sure, why not?

It's not like we pay attention to any part of the Bill or Rights these days except the 2nd 3rd Amendment.

As long as the government lets people keep all the guns they can eat, and doesn't stick Gomer Pyle in their kitchen, Americans are fine giving up every other right they have.

[Devil_Fish]

35. Encriptions programs should offer a Self Distruct option. NT

[ProgressiveProfessor]

39. They exist but are custom written

Very dangerous tools but they are out there.

There are any number of ways to beat computer forensics, it is really a case of how much the user is willing to put up with. One approach is to use a randomly changing memory resident key that goes away if it is not saved prior to shutdown. When the cops take the computer they are the ones who destroy the key.

A different kind of approach is based on using unobvious storage like wireless NAT for key items that are outside the scope of the warrant. By the time they figure out that one was being used and look for it, its too late.

[Devil_Fish]

42. Wow, I like that first idea. "your honor, when the cop turned the system off, the key was distroyed.

I was thinking somthing more along the lines of: enter the wrong pass word 3 times and the data gets wiped. Even better if you can make the HD smoke straight up Mission impossible style.

[ProgressiveProfessor]

45. Easy enough to do though the second approach is much less risky

[No Elephants]

48. Good to know. I wish I weren't such a goody two shoes, now that I know how to hide stuff.

[ProgressiveProfessor]

51. Remote NAT is quick and easy

Requires a cooperative friend or neighbor...sort of a a private cloud. All it does is avoid the first warrant and give you time to destroy the contents of the remote storage.

[laser_red]

40. I hid the password in a bag of dog food

the password is now missing

[Downwinder]

43. I'm tired of eating dog food. Here are my prescriptions. When is dinner.

You will save SS $30 a day and cost the taxpayers 250 per day and you can't bill Medicare.

On edit.

Oh, here is the list of my medical appointments. Have transport available.

[buckrogers1965]

49. Never lie.

Don't give them the wrong password, that would be considered lying to a police officer and that is punishable with jail time. You can still remain silent, that is a right gifted to you by provenance and can never be taken from you.

[ProgressiveProfessor]

50. Someone needs to tell the Brits that